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Bar set high in order to succeed in strike out applications

The Circuit Court recently imposed a “permanent stay” on negligence proceedings issued against a private hospital, in circumstances where the plaintiff confirmed that he was not in receipt of expert evidence to support his claim. Dylan Gannon considers the plaintiff's High Court Appeal1.

Judgment of Mr Justice Hogan

In his ruling, Judge Hogan referred to the Supreme Court decision in Cooke v Cronin2, where it was held that it was an abuse of process to issue and pursue a negligence action against a medical professional without reasonable grounds for doing so. Further, that prosecution of such an action requires the appropriate expert evidence to support it.

In the present case, the judge found that the first limb of the Cooke v Cronin test had in fact been established – the plaintiff did have reasonable grounds to issue proceedings in circumstances where he had concerns over an alleged misdiagnosis. However, the second limb of theCooke v Cronin test had not been satisfied, insofar as the plaintiff had not obtained expert evidence to support the allegations.

One of the factors taken into consideration in the Cooke v Cronin case, was the potential reputational damage to individual practitioners if plaintiffs were allowed to pursue negligence actions without supportive expert evidence. The present case was against a corporate body (a private hospital) rather than an individual, however, it was accepted that the defendant would also have concerns over potential damage to reputation.

Judge Hogan allowed the appeal, on the basis that the plaintiff could show reasonable grounds for issuing proceedings. However, he ordered the plaintiff to obtain and serve an expert report on the defendant’s solicitors within 12 months, and added that if this was not done, the defendant would be entitled to apply to the Circuit Court to have the proceedings dismissed.

This decision reaffirms that it is difficult for defendents to succeed in strike out applications, with the bar set high.

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